NERI V SENATE-SEPARATE OPINIONS legislation is intended to affect or to any proposed or possible legislation.

GR 180643 change. The Court (in Arnault v Nazareno)
LEONARDO-DE CASTRO; March 25, 2008
PUNO, C.J., DISSENTING
[SEE ORIG COPY, 1ST PAR. OF HIS DISSENT ON
PUNO’S NORTH STAR…]
- The doctrine of executive privilege is tension
between disclosure and secrecy in a
democracy. Its doctrinal recognition in the
Philippines finds its origin in the US political
and legal system and literature. At the outset,
it is worth noting that the provisions of the US
Consti say little about government secrecy or
public access. In contrast, the 1987 Consti is
replete with provisions on government
transparency, accountability and disclosure of
info. This is a reaction to our years under
martial rule when the workings of government
were veiled in secrecy.
- The boundaries established by the Consti
delineating the powers of the 3 branches must
be fashioned according to common sense and
the necessities of governmental coordination.
This Constitutional design requires an internal
balancing mechanism by which government
powers cannot be abused. We married all these
ideas in Angara v. Electoral Commission
(1936).
- There are 2 requirements for the valid
exercise of the legislative power of
investigation and contempt of witness for
contumacy: 1st, the existence of a
legislative purpose, i.e., the inquiry must be
in aid of legislation, and 2nd, the pertinency
of the question propounded.
There is legislative purpose when the subject
matter of the inquiry is one over which
the legislature can legislate, such as the
appropriation of public funds; and the creation,
regulation and abolition of government
agencies and positions. It is presumed that
the facts are sought by inquiry, because
the legislative body cannot legislate
wisely or effectively in the absence of info
respecting the conditions which the
The reason is, that the necessity or lack
noted that the investigation gave rise to
several bills recommended by the Special
Committee and approved by the Senate. So
under the first requirement, the dual
requirements of authority are that the power
exercised by the committee must be both
within the authority delegated to it and within
the competence of Congress to confer upon the
committee.
The test of pertinency is whether a question
itself is in the ultimate area of investigation; a
question is pertinent also if it is a usual and
necessary stone in the arch of a bridge over
which an investigation must go. In determining
pertinency, the court looks to the history of the
inquiry as disclosed by the record. Arnault
states the rule on pertinency, viz:
Once an inquiry is admitted or established to
be within the jurisdiction of a legislative body
to make, we think the investigating
committee has the power to require a
witness to answer any question
pertinent to that inquiry, subject of
course to his Constitutional right against self-
incrimination. The inquiry, to be within the
jurisdiction of the legislative body to make,
must be material or necessary to the
exercise of a power in it vested by the
Consti, such as to legislate, or to expel a
Member; and every question which the
investigator is empowered to coerce a
witness to answer must be material or
pertinent to the subject matter of the
inquiry or investigation. So a witness may
not be coerced to answer a question that
obviously has no relation to the subject of
the inquiry. But from this it does not follow
that every question that may be
propounded to a witness be material to
any proposed or possible legislation. In
other words, the materiality of the
question must be determined by its
direct relation to the subject of the
inquiry and not by its indirect relation
of necessity for legislative action and
the form and character of the action
itself are determined by the sum total
of the info to be gathered as a result of
the investigation, and not by a fraction
of such info elicited from a single
question.
- The US (and Phil.) Consti does not directly
mention “executive privilege,” but
commentators theorized that the privilege of
confidentiality is Constitutionally based, as it
relates to the President’s effective discharge of
executive powers. The Founders of the
American nation acknowledged an implied
Constitutional prerogative of Presidential
secrecy, a power they believed was at times
necessary and proper.
[PUNO WILL THEN DISCUSS HISTORY AND
SCOPE & CONTEXT OF EXEC. PRIVILEGE IN THE
US-PLS. SEE ORIG]
- Adjudication on executive privilege in the
Philippines is still in its infancy stage, with the
Court having had only a few occasions to
resolve cases that directly deal with the
privilege:
Almonte v Vasquez (1995) No military or
diplomatic secrets would be disclosed by the
production of records pertaining to the
personnel of the Economic Intelligence and
Investigation Bureau. Nor was there any law
making personnel records of the EIIB classified.
Thus, the Court concluded that the
Ombudsman’s need for the documents
outweighed the claim of confidentiality of
petitioners.
Chavez v PCGG (1998) It was incumbent
upon PCGG and its officers, as well as other
gov”t representatives, to disclose sufficient
public info on any proposed settlement they
had decided to take up with the ostensible
owners and holders of ill-gotten wealth. Such
info, however, must pertain to definite
propositions of the government, not
necessarily to intra-agency or inter-agency
recommendations or communications during
the exploratory stage. At the same time, the
Court noted the need to observe the same
restrictions on disclosure of info in general,
such as on matters involving national security,
diplomatic or foreign relations, intelligence and
other classified info. Again, the subject info did
not fall under Presidential communications.
Senate v Ermita (2006) Court again alluded
to US v Nixon and also recognized that
Presidential communications fall under the
mantle of protection of executive privilege in
the setting of a legislative inquiry. But since
the issue for resolution was the
Constitutionality of EO 464 and not whether an
actual Presidential communication was covered
by the privilege, the Court did not have
occasion to rule on the same.
[Start of US v Nixon discussion]
- US v Nixon came about because of a break-
in at the Democratic Nat’l Committee (DNC)
headquarters in Watergate Hotel. In the early
morning of June 17, 1972, about 4 ½ months
before the US Presidential election, police
discovered 5 men inside the DNC offices
carrying electronic equipment, cameras, and
large sums of cash. These men were operating
as part of a larger intelligence gathering plan
of the Committee to Re-elect the President,
Pres Nixon’s campaign organization for the
1972 election. Their mission was to fix a
defective bugging device which had been
placed a month before on the telephone of the
DNC chairperson. Their orders came from the
higher officials of the CRP.
A subpoena duces tecum was issued requiring
Nixon to produce for the grand jury certain
tape recordings and documents enumerated in
an attached schedule. President Nixon partially
complied with the subpoena, but otherwise
declined to follow its directives. In a letter to
the Court that issued the subpoena, the
President advised that the tape recordings
sought would not be provided, as he asserted
that the President is not subject to the
compulsory process of the courts. The Court
ordered the President or any appropriate
subordinate official to show cause why the
documents and objects described should not
be produced as evidence before the grand jury.
The Court ruled that it had jurisdiction to
decide the issue of privilege, and it had
authority to enforce the subpoena duces
tecum by way of an order requiring production
for inspection in camera.
Nixon appealed = Nixon v Sirica. Issue is WON
the President may, in his sole discretion,
withhold from a grand jury evidence in his
possession that is relevant to the grand jury's
investigations. Court overruled the President’s
invocation of executive privilege covering
Presidential communications and upheld the
order of the District Court.
Grand jury investigation = US v Mitchell
(Former Atty. General and head of CRP) The
Special Prosecutor filed a motion for a
subpoena duces tecum for the production
before trial of certain tapes and documents
relating to precisely identified conversations
and meetings of President Nixon. The
President, claiming executive privilege, moved
to quash the subpoena. The District Court,
after treating the subpoenaed material as
presumptively privileged, concluded that the
Special Prosecutor had made a sufficient
showing to rebut the presumption and that the
requirements for a subpoena had been
satisfied. The Court then issued an order for an
in camera examination of the subpoenaed
material. The Special Prosecutor filed in the US
Supreme Court a petition for certiorari which
upheld the order in US v. Nixon.
- For the first time in 1974, the US Supreme
Court recognized the Presidential
communications privilege and the
qualified presumption in its favor in US v.
Nixon. The decision cited 2 reasons for the
privilege and the qualified presumption:
1) the necessity for protection of the public
interest in candid, objective, and even
blunt or harsh opinions in Presidential
decision-making and 2) it is fundamental to
the operation of Government and
inextricably rooted in the separation of
powers under the Consti.
In support of the first reason, the Nixon Court
held that a President and those who assist him
must be free to explore alternatives in the
process of shaping policies and making
decisions and to do so in a way many would
be unwilling to express except privately. It
pointed to 2 bases of this need for
confidentiality. 1st is common sense and
experience. The importance of this
confidentiality is too plain to require further
discussion. Human experience teaches that
those who expect public dissemination of
their remarks may well temper candor with
a concern for appearances and for their
own interests to the detriment of the
decision-making process. The 2nd is the
supremacy of each branch in its own
sphere of duties under the Consti and the
privileges flowing from these duties.
As for the second reason, while the Consti
diffuses power to secure liberty, it also
contemplates that practice will integrate
the dispersed powers into a workable
government. It enjoins upon its branches
separateness but interdependence,
autonomy but reciprocity.
- The scope of Presidential communications
privilege covers communications in the
performance of the President’s
responsibilities of his office and made in
the process of shaping policies and
making decisions.
- There is a qualified presumption in favor of
Presidential privacy. To overcome this, there
must be sufficient showing of specific need for
the withheld info on the branch of government
seeking its disclosure. 2 standards must be
met to show the specific need: evidentiary
and constitutional.
US v Nixon -relevance, admissibility and
specificity.
In re Sealed Case -there must also be a
showing that evidence is not available with
due diligence elsewhere or that the
evidence is particularly and apparently
useful.
The claim of executive privilege must then be
balanced with the specific need for disclosure
of the communications on the part of the other
branch of government. In the “function
impairment test”, the Court weighs how the
disclosure of the withheld info would impair
the President’s ability to perform his
constitutional duties more than nondisclosure
would impair the other branch’s ability to
perform its constitutional functions.
- In excising materials that are not relevant or
not admissible or covered by executive
privilege because of their nature as military or
diplomatic secrets, the High Court emphasized
the heavy responsibility of the D.C. District
Court to ensure that these excised parts of the
Presidential communications would be
accorded that high degree of respect due the
President, considering the singularly unique
role under of a President’s communications
and activities, related to the performance of
duties. A President's communications and
activities encompass a vastly wider range of
sensitive material than would be true of any
ordinary individual. It was necessary in the
public interest to afford Presidential
confidentiality the greatest protection
consistent with the fair administration of
justice. Thus, the High Court sternly ordered
that until released by the judge to the Special
Prosecutor, no in camera material be revealed
to anyone, and that the excised material be
restored to its privileged status and returned
under seal to its lawful custodian.
[end of US v Nixon discussion]
- Senate v. Ermita: only the President or the
Executive Secretary, by order of the President,
can invoke executive privilege. Thus,
petitioner, himself or through his counsel,
cannot expand the grounds invoked by the
President through Sec Ermita. In his letter, Sec
Ermita invoked only the Presidential
communication privilege and, suggested a
claim of diplomatic secrets privilege. But
even assuming arguendo that petitioner Neri
can properly invoke the privilege covering
“national security” and “military affairs,” still,
the records will show that he failed to provide
the Court knowledge of the circumstances
with which the Court can determine whether
there is reasonable danger that his answers
to the 3 disputed questions would indeed
divulge secrets that would compromise our
national security.
- The Presidential communications
privilege attaches to the office of the
President; it is used after careful
consideration in order to uphold public interest
in the confidentiality and effectiveness of
Presidential decision-making to benefit
the Office of the President. It is not to be
used to personally benefit the person
occupying the office.
- The function impairment test begins with
recognition that Presidential communications
are presumptively privileged. Senate
Committees’ argument that the burden is on
petitioner to overcome a presumption against
executive privilege cannot be sustained.
- Given the qualified presumption in favor of
the confidentiality of Presidential
communications, the Court should proceed to
determine the strength of this presumption as
it varies in light of various factors. The more
concentrated power is in the President, the
greater the need for confidentiality and the
stronger the presumption. Other factors to be
considered in determining the strength of the
presumption of confidentiality of Presidential
communications pertain to the nature of the
disclosure sought, namely: (1) time of
disclosure, whether contemporaneous
disclosure or open deliberation, which has a
greater chilling effect on rendering candid
opinions, as opposed to subsequent disclosure;
(2) level of detail, whether full texts or whole
conversations or summaries; (3) audience,
whether the general public or a select few; (4)
certainty of disclosure, whether the info is
made public as a matter of course or upon
request ; (5) frequency of disclosure; and (6)
form of disclosure, whether live testimony or
recorded conversation or affidavit. The type of
info should also be considered, whether
involving military, diplomatic or national
security secrets.
- It is self-evident that the 3 assailed
questions are pertinent to the subject
matter of the legislative investigation being
undertaken by the respondent Committees.
More than the Arnault standards, the questions
to petitioner have direct relation not only to
the subject of the inquiry, but also to the
pending bills thereat. There is also no
effective substitute for the info sought.
The 3 questions demand info on how the
President herself weighed options and the
factors she considered in concluding the NBN-
ZTE Contract.
- On one end of the balancing scale is the
President’s generalized claim of
confidentiality of her communications, and
petitioner’s failure to justify a claim that his
conversations with the President involve
diplomatic, military and national security
secrets. Presidential communications enjoy a
presumptive privilege but this is weakened
by the fact that the subject of the
communication involves a contract with a
foreign loan. The power to contract foreign
loans is a power not exclusively vested in the
President, but is shared with the Monetary
Board (Central Bank). We also consider the
chilling effect which may result from the
disclosure of the info sought from petitioner
Neri but this is diminished by the nature of
the info sought, which is narrow, limited
as it is to the 3 questions. We take judicial
notice also of the fact that in a Senate inquiry,
there are safeguards against an
indiscriminate conduct of investigation.
On the other end of the balancing scale is the
respondent Committees’ specific and
demonstrated need for the Presidential
communications in reply to the 3 questions.
These questions are pertinent to the subject
matter of their investigation, and there is no
effective substitute for the info coming from
a reply to these questions. In the absence of
the info they seek, the Senate Committees’
function of intelligently enacting laws “to
remedy what is called ‘dysfunctional
procurement system of the government’” and
to possibly include “executive agreements for
Senate concurrence” to prevent them from
being used to circumvent the requirement of
public bidding in the existing Government
Procurement Reform Act cannot but be
seriously impaired. With all these
considerations factored into the equation, we
have to strike the balance in favor of the
respondent Senate Committees and
compel petitioner Neri to answer the 3
questions.
- As to respondent Committees’ contention that
executive privilege cannot be used to hide a
wrongdoing: It is after the privilege has been
pierced by a demonstrated need that one can
discover WON the privilege was used to shield
a wrongdoing. We should not put the cart
before the horse.
[VALIDITY OF CONTEMPT AND ARREST ORDER]
- The legislative purpose of the Senate inquiry
and pertinence of the questions propounded
has sufficiently been shown. It is worth noting
that the letter of Sec Ermita merely requested
that petitioner’s testimony on Nov 20, 2007 on
the NBN Contract be dispensed with, as he had
exhaustively testified on the subject matter of
the inquiry. Executive privilege was invoked
only with respect to the 3 questions Neri
refused to answer in his testimony before
respondent Committees on Sep 26, 2007. But
there is no basis for either petitioner or the
Exec Sec to assume that petitioner’s further
testimony will be limited to the 3 questions.
Needless to state, respondent Committees
have good reasons in citing Neri for contempt
for failing to appear in the Nov 20 hearing.
- Section 18 of the Senate Rules Governing
Inquiries in Aid of Legislation provides, viz:
Sec. 18. Contempt. - The Committee, by a
vote of a majority of all its members,
may punish for contempt any witness before
it who disobeys any order of the Committee
or refuses to be sworn or to testify or to
answer a proper question by the Committee
or any of its members, or testifying, testifies
falsely or evasively. Contempt of the
Committee shall be deemed contempt of the
Senate. Such witness may be ordered by the
Committee to be detained in such place as it
may designate under the custody of the
Sergeant-at-Arms until he agrees to produce
the required documents, or to be sworn or to
testify, or otherwise purge himself of that
contempt.
Even assuming arguendo that ex-officio
members are counted in the determination of a
majority vote, the majority requirement for
each of the respondent Senate Committees
was still satisfied, as all the ex-officio members
signed the Order of arrest.
The substantive and procedural
requirements for issuing an Order of
arrest having been met, the respondent
Committees did not abuse their discretion
in issuing the Jan 30, 2008 Order of arrest
of petitioner.
CARPIO-MORALES, DISSENTING
EO 464 allowed executive officials not to
attend investigations conducted by Congress in
aid of legislation by the mere invocation of that
Order, without having to explain the specific
reasons why the info being requested of them
may not be disclosed. But now, because of
Senate v Ermita, to justify withholding info
which, in their judgment, may be validly kept
confidential, executive officials have to obtain
from the President, or the Executive Secretary
“by order of the President,” a claim of
executive privilege which states the grounds or
basis.
In determining WON the claim of privilege
subject of the present petition for certiorari is
valid, the Court should not lose sight of the fact
that the same is only part of the broader issue
of WON respondent Committees committed
grave abuse of discretion in citing petitioner in
contempt and ordering his arrest. There should
be no doubt at all about its proper resolution.
Even assuming arguendo that the claim of
privilege is valid, it bears noting that the
coverage thereof is clearly limited to the 3
questions. The only way this privilege claim
could have validly excused petitioner’s
absence at the Nov 20 hearing was if
respondent Committees had nothing else to
ask him except the 3 questions. Petitioner
assumed that this was so, without any valid
basis whatsoever. It was merely his inference
from his own belief that he had already given
an exhaustive testimony during which
he answered all the questions of respondent
Committees except the 3.
As for petitioner’s claim that respondents only
have the power of direct contempt: This was
raised only in his Letter, not in petitions;
Petitioner already conceded to this incidental
power; In any case, legislative’s contempt
power is sui generis. It is full and complete to
deal with any affront committed against or any
defiance of legislative authority or dignity, in
the exercise of its power to obtain info on
which to base intended legislation.
Petitioner’s claim that the rules on inquiry in
aid of legislation has not been published is
inconsequential. (Sabio v Gordon)
It was held in Senate v. Ermita that a claim of
privilege may be valid or not depending on the
ground invoked to justify it and the context in
which it is made. “Context” has more to do
with the degree of need shown by the person
or agency asking for info, than with additional
reasons which the Executive may proffer for
keeping the same info confidential.
Sec. Ermita’s statement that disclosure of the
info being asked by respondent Committees
might impair our diplomatic and economic
relations with China, albeit proffered as the
context of his claim of the presidential
communications privilege, is a claim of
privilege by itself, it being an invocation of the
diplomatic secrets privilege. Thus, 2 kinds of
privilege are being invoked.
It may be gathered that all 3 questions were
directed toward the same end, namely, to
determine the reasons why the NBN project,
despite the apparent overpricing, ended up
being approved by the Executive and financed
via a government loan, contrary to the original
intention to follow a BOT scheme. The 3
questions should be understood in this light.
To assert that certain info falls under a
recognized privilege is to allege that disclosure
thereof may be harmful to the public interest.
It would be impossible for the courts, however,
to determine whether a potential harm indeed
exists were the Executive allowed to claim the
privilege without further explanation. Hence,
the ruling in Senate v. Ermita that claims of
privilege should state specific reasons for
preserving confidentiality.
When the privilege being invoked against a
subpoena ad testificandum is that for
presidential communications, such specificity
requirement is not difficult to meet, for it need
only be evident from the questions being asked
that the info being demanded pertains to
conversations between the President and her
adviser. In petitioner’s case, the 3 questions
posed by respondent Committees clearly
require disclosure of his conversations with the
President in his capacity as adviser. Requiring
the Executive to explain more precisely how
this question would involve petitioner’s
conversation with the President might compel
him to disclose the very thing which the
privilege was meant to protect.
Compared to claims of the presidential
communications privilege, it is more difficult to
meet the specificity requirement in claims of
the diplomatic secrets privilege, for the
Executive must be able to establish a
connection between the disclosure of the info
being sought with the possible impairment of
our diplomatic relations with other nations. It
has not been shown how petitioner’s response
to any of the 3 questions may be potentially
injurious to our diplomatic relations with
China. Even assuming that the 3 questions
were answered in the negative – meaning that
the President did not follow up on the NBN
project, did not dictate upon petitioner to
prioritize the ZTE, and did not instruct him to
approve the NBN project – it is not clear how
our diplomatic relations with China can be
impaired by the disclosure thereof, especially
given that the supply contract with ZTE was, in
fact, eventually approved by the President. If,
on the other hand, the answers to the 3
questions are in the affirmative, it would be
even more difficult to see how our relations
with China can be impaired by their disclosure.
A claim of privilege, even a legitimate one,
may be overcome when the entity asking for
info is able to show that the public interest in
the disclosure thereof is greater than that in
upholding the privilege. Given the implications
of the query on the 3 questions, it would be
unreasonable to expect respondent
Committees to merely hypothesize on the
alternative responses and come up with
legislation on that basis. This is a situation
where at least a credible, if not precise,
reconstruction of what really happened is
necessary for the intelligent crafting of the
intended legislation. Why is it that, after
petitioner reported the alleged bribe to the
President, things proceeded as if nothing was
reported? Respondent Senate Committees are
certainly acting within their rights in trying to
find out the reasons for such a turn of events.
If it was in pursuit of the public interest,
respondents surely have a right to know what
this interest was so that it may be taken into
account in determining whether the laws on
government procurement, BOT, ODA and other
similar matters should be amended and, if so,
in what respects. It is hard to see how the
impairment of the public interest in candid
opinions in presidential decision-making can, in
this case, outweigh the immense good that can
be achieved by well-crafted legislation
reforming the procurement process.
YNARES-SANTIAGO, DISSENTING
The President does not have an unlimited
discretionary privilege to withhold info from
Congress, the Judiciary or the public, even if
the claim is founded on one of the traditional
privileges covered by the doctrine on executive
privilege.
The doctrine of executive privilege applies only
to certain types of info of a sensitive character
that would be against the public interest to
divulge. As held in Senate v. Ermita, the
doctrine is premised on the fact that certain
info must, as a matter of necessity, be kept
confidential in pursuit of the public interest.
Considering that the privilege is an exemption
from the obligation to disclose info, the
necessity for non-disclosure must be of such
high degree as to outweigh public interest.
I do not see how public condemnation and
criticism can have an adverse effect on the
President’s performance of her powers and
functions as Chief Executive. In a democracy
such as ours, it is only to be expected that
official action may be met with negative
feedback or even outrage from a disapproving
public. If at all, the public’s opinion, negative
or otherwise, should enhance the President’s
performance of her Constitutionally-mandated
duties. It is through open discussion and
dialogue that the government better responds
to the needs of its citizens and the ends of
government better achieved.
CARPIO, DISSENTING AND CONCURRING
- Info covered by executive privilege remains
confidential even after the expiry of the terms
of office of the President, Cabinet members
and presidential advisers. Thus, a former
President can assert executive privilege.
Executive privilege attaches to the info and not
to the person. Executive privilege is for the
benefit of the State and not for the benefit of
the office holder. Even death does not
extinguish the confidentiality of info covered by
executive privilege.
- Executive privilege must be exercised by the
President in pursuance of official powers and
functions. Executive privilege cannot be
invoked to hide a crime because the President
is neither empowered nor tasked to conceal a
crime. On the contrary, the President has the
constitutional duty to enforce criminal laws and
cause the prosecution of crimes.
- Executive privilege cannot also be used to
hide private matters, like private financial
transactions of the President. Private matters
are those not undertaken pursuant to the
lawful powers and official functions of the
Executive. However, like all citizens, the
President has a constitutional right to privacy.
In conducting inquiries, the Legislature must
respect the right to privacy of citizens,
including the President’s.
- Executive privilege must be invoked after the
question is asked by the legislative committee,
not before. A witness cannot raise hypothetical
questions that the committee may ask, claim
executive privilege on such questions, and on
that basis refuse to appear before the
legislative committee. If the legislative
committee furnished in advance the questions
to the witness, the witness must bring with him
the letter of the President or Executive
Secretary invoking executive privilege and
stating the reasons for such claim.
If the legislative committee did not furnish in
advance the questions, the witness must first
appear before the legislative committee, wait
for the question to be asked, and then raise
executive privilege. The legislative committee
must then give the witness sufficient time to
consult the President or Executive Secretary
whether the President will claim executive
privilege. At the next hearing, the witness can
bring with him the letter of the President or
Executive Secretary, and if he fails to bring
such letter, the witness must answer the
question.
- The Legislature can conduct inquiries not
specifically to enact laws, but specifically to
oversee the implementation of laws. This is
the mandate of various legislative oversight
committees which admittedly can conduct
inquiries on the status of the implementation of
laws. In the exercise of the legislative oversight
function, there is always the potential, even if
not expressed or predicted, that the oversight
committees may discover the need to improve
the laws they oversee and thus recommend
amendment of the laws. This is sufficient
reason for the valid exercise of the power of
legislative inquiry. Indeed, the oversight
function of the Legislature may at times be as
important as its law-making function.
- The inherent power of the Legislature to
arrest a recalcitrant witness remains despite
the constitutional provision that “no warrant of
arrest shall issue except upon probable cause
to be determined personally by the judge.” The
power being inherent in the Legislature,
essential for self-preservation, and not
expressly withdrawn in the Constitution, the
power forms part of the legislative power
vested in the Congress. The Legislature asserts
this power independently of the Judiciary. A
grant of legislative power in the Constitution is
a grant of all legislative powers, including
inherent powers.
The Legislature can cite in contempt and order
the arrest of a witness who fails to appear
pursuant to a subpoena ad testificandum.
There is no distinction between direct and
indirect contempt of the Legislature because
both can be punished motu propio by the
Legislature upon failure of the witness to
appear or answer. Contempt of the Legislature
is different from contempt of court.
- The 3 questions that Executive Secretary
Ermita claims are covered by executive
privilege, if answered by petitioner, will not
disclose confidential Presidential
communications. Neither will answering the
questions disclose diplomatic secrets. Counsel
for petitioner admitted this during the oral
arguments.
- The present Senate has 24 members, 12 of
whom are elected every 3 yrs for a term of 6
yrs each. Thus, the term of 12 Senators expires
every 3 yrs, leaving less than a majority of
Senators to continue into the next
Congress. The 1987 Consti, like the 1935,
requires a majority of Senators to “constitute a
quorum to do business.” Applying the same
reasoning in Arnault, the Senate under the
1987 Consti is not a continuing body because
less than majority of the Senators continue into
the next Congress. The consequence is that
the Rules of Procedure must be
republished by the Senate after every
expiry of the term of 12 Senators.
Publication of the Rules of Procedure in the
website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under
the Tañada v. Tuvera ruling. The Rules of
Procedure even provide that the rules “shall
take effect 7 days after publication in 2
newspapers of general circulation,” precluding
any other form of publication. Due process
requires that “fair notice” be given to citizens
before rules that put their liberty at risk take
effect. The failure of the Senate to publish its
Rules of Procedure as required in Sec 22, Art
VI, Consti renders the Rules of Procedure void.
The Contempt and Arrest Order is, therefore
also void.
CORONA, CONCURRING
- Publishing rules of procedure is an obligation
imposed by the Constitution itself, it cannot be
ignored, trifled with or violated without
transgressing the fundamental law.
- Under the Rules of Procedure of the Senate
and the Rules of the Blue Ribbon Committee,
respondent Committees are authorized only to
detain a witness found guilty of contempt. On
the other hand, nowhere does the word
“arrest” appear in either rules of
procedure.
There is a whale of a difference between
the power to detain and the power to arrest.
To detain means to hold or keep in custody. On
the other hand, to arrest means to seize,
capture or to take in custody by authority of
law. Thus, the power to detain is the power to
keep or maintain custody while the power to
arrest is the power to take custody. The power
to detain implies that the contumacious
witness is in the premises (or custody) of the
Senate and that he will be kept therein or in
some other designated place. In contrast, the
power to arrest presupposes that the subject
thereof is not before the Senate or its
committees but in some other place outside.
The distinction is not simply a matter of
semantics. It is substantial, not conceptual, for
it affects the fundamental right to be free from
unwarranted governmental restraint.
- Neri was ordered arrested and detained
allegedly for contempt because of his refusal or
failure to comply with a subpoena ad
testificandum. However, the Rules of Senate
and the Blue Ribbon Committee show that they
do not provide for a sanction on the refusal or
failure to obey a subpoena ad testificandum.
- Also, the proper subject of the contempt
power is “any witness before” the
concerned committee(s) of the Senate. The
witness must be in attendance or physically
present at the legislative inquiry. It is in this
context (and this context alone) that the
respective provisions of the Rules of Procedure
of the Senate and the Rules of the Blue Ribbon
Committee speak of the witness’s disobedience
of any committee order, refusal to be sworn or
to testify or to answer a proper question and
giving of false or evasive testimony. Likewise,
it is only in accordance with such premise that
a witness may be ordered detained. In this
case, Neri was not before the respondent
Committees. That was why respondent
Committees ordered his arrest.
CHICO-NAZARIO, CONCURRING
- Executive privilege is not meant to personally
protect the President, but is inherent in her
position to serve, ultimately, the public
interest. It is not an evil thing that must be
thwarted at every turn. Just as acts of the
Legislature enjoy the presumption of validity,
so must also the acts of the President. Just as
all other public officers are afforded the
presumption of regularity in the exercise of
their official functions, then what more the
President, the highest Executive official of the
land.
- Respondent Committees cite the statement
made by this Court in Ermita that “the
extraordinary character of the exemptions
indicates that the presumption inclines heavily
against executive secrecy and in favor of
disclosure.” However, said declaration must be
taken in the context of Ermita where EO 464
placed under the protection of executive
privilege virtually all conversations,
correspondences, and info of all executive and
military officials, unless otherwise ordered by
the President. Ermita firmly established that
public disclosure is still the general rule while
executive privilege is the exemption therefrom.
But when the President does invoke executive
privilege as regards certain info, the same
must be deemed presumptively privileged.
- While the search for the truth is truly a noble
aspiration, respondent Senate Committees
must bear in mind that their inquiry and
investigative powers should remain focused on
the primary purpose of legislation.
- Another point militating against the issuance
of the contempt and arrest Order is its
issuance even without quorum and the
required number of votes in the respondent
Committees. During oral arguments, Senator
Pangilinan asserted that whatever infirmities at
the committee level were cured by the 2/3
votes of the entire Senate favoring the
issuance of the contempt and arrest Order
against petitioner Neri, since the committee is
a mere agent of the entire chamber.
TINGA, CONCURRING
- Given the wide publicity some legislative
inquiries are able to attract, especially when
they call attention to wrongdoings on the part
of government officials or private individuals,
there is somehow a public perception that
legislative inquiries are primarily vital in their
truth-seeking faculty. Perhaps the legislators
who function as inquisitors feel ennobled by
that perception as well. Can this purpose,
which admittedly is neither morally nor
politically neutral, be accommodated in the
constitutional function of legislative inquiries?
Facially yes, since the goal of legislative
oversight is integrally wedded to the function
of legislative inquiries. In aiming to create
effective laws, it is necessary for our
lawmakers to identify the flaws in our present
statutes. To the extent that such flaws are
linked to the malperformance of public officials,
the resultant public exposure and
embarrassment of such officials retain
relevance to the legislative oversight and
inquiry process.
Yet all the righteous, divinely-inspired
fulminations that find expression in the
legislative inquiry cannot bestow on that
process a higher or different purpose than that
intended by the Constitution. Contrary as it
may be to the public expectation, legislative
inquiries do not share the same goals as the
criminal trial or the impeachment process. The
orientation of legislative inquiries may be
remedial in nature, yet they cannot be punitive
in the sense that they cannot result in legally
binding deprivation of a person’s life, liberty or
property. No doubt that a legislative inquiry
conducted under the glare of klieg lights can
end up destroying one’s life, livelihood or
public reputation – as many suspected
American leftists discovered when they were
caught in the dragnet of persecution during the
McCarthy era – yet such unfortunate results
should only incidentally obtain as a result of an
inquiry aimed not at specific persons, but at
the framework of the laws of the land.
It is vital to draw the distinction between
legislative inquiries and the other legal
processes, such as impeachment or criminal
trials, that are oriented towards imposing
sanctions in the name of the State.

[I BELIEVE NA NA-EXHAUST NA NG IBANG

JUSTICES VIRTUALLY LAHAT NG MAY SENSE
PANG SABIHIN. SO JUST TO COMPLETE THE
ROLL…]
VELASCO, CONCURRING
NACHURA, CONCURRING
BRION, CONCURRING